§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
I have been considering the outcome of the consultation on the future of Queen's Counsel in England and Wales, and Northern Ireland. In July 2003 I published a consultation paper on the future of Queen's Counsel; 376 responses were received. I published a summary of these responses on 26 January 2004.
Whilst the consultation did not produce a consensus as to whether the title of Queen's Counsel should continue to exist, it is clear to me that as Lord Chancellor and Secretary of State I should no longer play a part in assessing and selecting candidates to be appointed as QCs. None of the consultees could demonstrate that such involvement in the selection process is fundamental to the Silk mark's value; nor does it add value for consumers of legal services. I will, therefore, not continue that role.
Yet respondents from within the legal services market were equally clear about the value of maintaining a kitemark for advocacy services—both to recognise excellence and to provide useful information for consumers. For this reason, the Government have invited the Bar Council and the Law Society, and their counterparts In Northern Ireland, to develop and implement new schemes for accrediting leading advocates, which will replace the existing arrangements. The professions are far better placed to fulfil this function than the Secretary of State for Constitutional Affairs. I do have a responsibility, however, for ensuring that the resultant scheme is fair and in the interests of the public and the consumers of legal services.55WS
My intention is to work with the professions to ensure that the replacement schemes meet as many as possible of the objections that have been raised over the Silk appointments process. Kitemarking must be designed to serve the interests of consumers by identifying genuine excellence. It must provide fairness for members of the professions. I would also want it to encourage diversity within the professions, with a continually widening range of backgrounds and experience represented amongst those the professions recognise as leaders in advocacy. I have every confidence that the professions can deliver this aim. To achieve these goals, there must be rigorous selection against clearly defined objective criteria. There must also be provision for the kitemark to be removed where the holder has failed to meet the high standards required. The professional bodies have agreed to work together to achieve a single scheme for both branches of the profession and are already collaborating with each other and my department in working out the details of a joint approach to reform. I will set out these plans in a further Statement.
The professions will be responsible for selection and will send a list of suitable candidates to the DCA. I will retain responsibility for recommending as a Minister to Her Majesty that she appoint those on the list to the rank of Queen's Counsel. I will of course need to satisfy myself that the interim scheme meets the goals I have set for it, and consider whether the professions' recommendations are consistent with its terms and whether I should depart from them in exceptional circumstances.
The new arrangements should be ready to receive the first applications towards the end of this year. They will ensure, as the great majority of those who responded to the consultation asked, that there will continue to be effective arrangements for recognising advocacy of outstanding quality in the higher courts. At the same time, those arrangements will have particular regard to the need for a competitive market.
The consultation process also demonstrated the need for a wider review not just of kitemarking but of the information available to consumers in relation to the whole spectrum of legal services. That review will seek to establish what shortfalls there are in the information available, and what solutions can be implemented to serve better the interests of the consumer. An important part of this process will be establishing what types of accreditation scheme might be beneficial and how they should be set up and administered. The evaluation will not be restricted to advocacy alone, but will cover all fields of legal practice in which there is a need for better consumer information. It will be based on the principles that we are already establishing for the advocacy scheme—fairness, diversity, and a stronger focus on consumer interests. In particular, it will take full account of the wider context of competition law and the free market. While we carry out this longer-term market study, we will be careful to keep the work consistent with the review of the regulation of legal services that Sir David Clementi is conducting. If the conclusion of the market study is that new ways are required to meet consumers' information needs, one of the essential 56WS questions will be who will best be able to meet these needs. That will have to be decided in the light of the presentation of Sir David's conclusions which are due at the end of this year. Because of this linkage, and if any legislation is needed to implement the results of the market study, the Government expect that any scheme would be implemented at the same time as the conclusions on the wider review.
The reformed kitemark for higher court advocacy is an interim measure. We have adopted it to provide continuity and to maintain the advantages that the consultation process has identified—in the international market, for example. It will be reviewed when the results of the long-term market study are available, to confirm first whether legal services customers need it, and—if they do—that it is still compatible with the principles that will be established in the study.
The interim scheme will retain the title of QC. The use of the QC title will be reviewed along with the other details of the scheme once the market study is complete. But I stress that although the title will not be changed in the interim scheme, the substance of the award will be different since it will be based on improved criteria and selection processes.
The interim solution does not aim to remove the title of QC from existing holders. We are looking for ways to improve the current system and at the wider picture. It makes sense to consider what, if anything, to do about the current titleholders only when that process is complete.
This decision affects only the jurisdictions for which I have responsibility: England and Wales, and Northern Ireland. It does not affect the position in Scotland, or the Crown Dependencies, or any of the overseas territories or Commonwealth countries where the rank of Queen's Counsel is in use.